JEFF GROH, PETITIONER v. JOSEPH
R.RAMIREZ et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

[February 24, 2004]

Justice Kennedy, with whom The Chief
Justice joins, dissenting.

I agree with the Court that the Fourth Amendment
was violated in this case. The Fourth Amendment
states that no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized. The warrant issued in this case did not
particularly describe the things to be seized, and so did not
comply with the Fourth Amendment.
I disagree with the Court on whether the officer who obtained
the warrant and led the search team is entitled to qualified
immunity for his role in the search. In my view, the officer
should receive qualified immunity.

An officer conducting a search is
entitled to qualified immunity if a reasonable officer
could have believed that the search was lawful in
light of clearly established law and the information the
searching officers possessed. Anderson v.
Creighton,483
U.S. 635, 641 (1987). As the Court notes, this is the same
objective reasonableness standard applied under the good
faith exception to the exclusionary rule. See
ante, at 13, n. 8 (citing Malley v.
Briggs,475
U.S. 335, 344 (1986)). The central question is whether
someone in the officers position could reasonably but
mistakenly conclude that his conduct complied with the Fourth Amendment.
Creighton, supra, at 641. See also
Saucier v. Katz, 533 U.S. 194, 206
(2001); Hunter v. Bryant,502 U.S. 224, 227
(1991) (per curiam).

An officer might reach such a
mistaken conclusion for several reasons. He may be unaware of
existing law and how it should be applied. See, e.g.,Saucier, supra. Alternatively, he may
misunderstand important facts about the search and assess the
legality of his conduct based on that misunderstanding. See,
e.g.,Arizona v. Evans,514 U.S. 1 (1995).
Finally, an officer may misunderstand elements of both the
facts and the law. See, e.g.,Creighton,
supra. Our qualified immunity doctrine applies
regardless of whether the officers error is a mistake of
law, a mistake of fact, or a mistake based on mixed questions
of law and fact. Butz v. Economou,438 U.S. 478, 507
(1978) (noting that qualified immunity covers mere
mistakes in judgment, whether the mistake is one of fact or one
of law).

The present case involves a
straightforward mistake of fact. Although the Court does not
acknowledge it directly, it is obvious from the record below
that the officer simply made a clerical error when he filled
out the proposed warrant and offered it to the Magistrate
Judge. The officer used the proper description of the property
to be seized when he completed the affidavit. He also used the
proper description in the accompanying application. When he
typed up the description a third time for the proposed warrant,
however, the officer accidentally entered a description of the
place to be searched in the part of the warrant form that
called for a description of the property to be seized. No one
noticed the error before the search was executed. Although the
record is not entirely clear on this point, the mistake
apparently remained undiscovered until the day after the search
when respondents attorney reviewed the warrant for
defects. The officer, being unaware of his mistake, did not
rely on it in any way. It is uncontested that the officer
trained the search team and executed the warrant based on his
mistaken belief that the warrant contained the proper
description of the items to be seized.

The question is whether the
officers mistaken belief that the warrant contained the
proper language was a reasonable belief. In my view, it was.
A law enforcement officer charged with leading a team to
execute a search warrant for illegal weapons must fulfill a
number of serious responsibilities. The officer must establish
probable cause to believe the crime has been committed and that
evidence is likely to be found at the place to be searched;
must articulate specific items that can be seized, and a
specific place to be searched; must obtain the warrant from a
magistrate judge; and must instruct a search team to execute
the warrant within the time allowed by the warrant. The
officer must also oversee the execution of the warrant in a way
that protects officer safety, directs a thorough and
professional search for the evidence, and avoids unnecessary
destruction of property. These difficult and important tasks
demand the officers full attention in the heat of an
ongoing and often dangerous criminal investigation.

An officer who complies fully with
all of these duties can be excused for not being aware that he
had made a clerical error in the course of filling out the
proposed warrant. See Maryland v. Garrison,480 U.S. 79, 87 (1987)
(recognizing the need to allow some latitude for honest
mistakes that are made by officers in the dangerous and
difficult process of making arrests and executing search
warrants). An officer who drafts an affidavit, types up
an application and proposed warrant, and then obtains a
judges approval naturally assumes that he has filled out
the warrant form correctly. Even if the officer checks over
the warrant, he may very well miss a mistake. We all tend
toward myopia when looking for our own errors. Every lawyer
and every judge can recite examples of documents that they
wrote, checked, and doublechecked, but that still contained
glaring errors. Law enforcement officers are no different. It
would be better if the officer recognizes the error, of course.
It would be better still if he does not make the mistake in
the first place. In the context of an otherwise proper search,
however, an officers failure to recognizehis clerical
error on a warrant form can be a reasonable mistake.

The Court reaches a different result
by construing the officers error as a mistake of law
rather than a mistake of fact. According to the Court, the
officer should not receive qualified immunity because no
reasonable officer could believe that a warrant that plainly
did not comply with [the particularity] requirement was
valid. Ante, at 12. The majority is surely right
that a reasonable officer must know that a defective warrant is
invalid. This much is obvious, if not tautological. It is
also irrelevant, for the essential question here is whether a
reasonable officer in petitioners position would
necessarily know that the warrant had a clerical error in the
first place. The issue in this case is whether an officer can
reasonably fail to recognize a clerical error, not whether an
officer who recognizes a clerical error can reasonably conclude
that a defective warrant is legally valid.

The Court gives little attention to
this important and difficult question. It receives only two
sentences at the very end of the Courts opinion. In the
first sentence, the Court quotes dictum from United
States v. Leon,468 U.S. 897, 923
(1984), to the effect that a warrant may be so facially
deficienti.e., in failing to particularize the
place to be searched or the things to be seizedthat the
executing officers cannot reasonably presume it to be
valid. Ante,
at 1314. In the second sentence, the Court informs us
without explanation that [t]his is such a case.
Ante, at 14. This reasoning is not convincing.

To understand the passage from
Leon that the Court relies upon, it helps to recognize
that most challenges to defective search warrants arise when
officers rely on the defect and conduct a search that should
not have occurred. The target of the improper search then
brings a civil action challenging the improper search, or, if
charges have been filed, moves to suppress the fruits of the
search. The inquiry in both instances is whether the
officers reliance on the defect was reasonable. See,
e.g., Garrison,supra, (apartment wrongly
searched because the searching officers did not realize that
there were two apartments on the third floor and obtained a
warrant to search the entire floor); Arizona v.
Evans,514 U.S.
1 (1995) (person wrongly arrested and searched because a
court employees clerical error led officer to believe a
warrant existed for persons arrest); McLeary v.
Navarro, 504
U.S. 966 (1992) (White, J., dissenting from denial of
certiorari) (house wrongly searched because informant told
officers the suspect lived in the second house on the right,
but the suspect lived in the third house on the right).

The language the Court quotes from
Leon comes from a discussion of when an officer
[who] has obtained a [defective] warrant and abided by its
terms has acted reasonably. 468 U.S., at 922. The
discussion notes that there are some cases in which no
reasonably well trained officer should rely on the
warrant. Id., at 923. The passage also includes
several examples, among them the one that the Court relies on
in this case: depending on the circumstances of the
particular case, a warrant may be so facially
deficienti.e., in failing to particularize the
place to be searched or the things to be seizedthat the
executing officers cannot reasonably presume it to be
valid. Ibid.

The Court interprets this language to
mean that a clerical mistake can be so obvious that an officer
who fails to recognize the mistake should not receive qualified
immunity. Read in context, however, the quoted language is
addressed to a quite different issue. The most natural
interpretation of the language is that a clerical mistake can
be so obvious that the officer cannot reasonably rely on the
mistake in the course of executing the warrant. In other
words, a defect can be so clear that an officer cannot
reasonably abid[e] by its terms and execute the
warrant as written. Id., at 922.

We confront no such issue here, of
course. No one suggests that the officer reasonably could have
relied on the defective language in the warrant. This is a
case about an officer being unaware of a clerical error, not a
case about an officer relying on one. The respondents do not
make the usual claim that they were injured by a defect that
led to an improper search. Rather, they make an unusual claim
that they were injured simply because the warrant form did not
contain the correct description of the property to be seized,
even though no property was seized. The language from
Leon is not on point.

Our Court has stressed that the
purpose of encouraging recourse to the warrant procedure
can be served best by rejecting overly technical standards when
courts review warrants. Illinois v. Gates,462 U.S. 213, 237
(1983). We have also stressed that qualified immunity
provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.
Malley, 475 U.S., at 341. The Courts opinion is
inconsistent with these principles. Its analysis requires our
Nations police officers to concentrate more on the
correctness of paper forms than substantive rights. The
Courts new duty to ensure that the warrant conforms
to constitutional requirements sounds laudable,
ante, at 11, n. 6, but would be more at home in a
regime of strict liability than within the ample room for
mistaken judgments that our qualified immunity
jurisprudence traditionally provides. Malley, supra, at
343.